'Street check' or 'well-being check'? Police carding case comes at key juncture in Ontario

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On a windy April morning last year, Hamilton City Councillor Matthew Green was checking e-mails as he waited for a bus in the city's downtown when a police officer rolled up in a cruiser and began asking questions.

"What are you doing there?" he says the officer asked him, as he sought shelter from the cold breeze under an overpass, kitty corner from the bus stop. "Where are you going?"

"Are you even from this city?"

Once the officer realized that Mr. Green was a city councillor, the tone of the conversation changed, he says. The officer asked if he was okay. And then he left.

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That brief but critical exchange between a police officer and the city's first and only black city councillor has become the focus of a tense and drawn-out police disciplinary hearing, believed to be the first in Ontario history into the controversial practice of carding.

Hamilton Police Constable Andrew Pfeifer is charged with discreditable conduct under the Police Services Act (PSA) for conducting an "arbitrary or unjustified" street check against Mr. Green. The officer, a 10-year veteran of the service, says he stopped that morning because he was concerned for Mr. Green's well-being. Mr. Green says he was targeted because he is black.

Final arguments in the case were presented in Hamilton Thursday, but a decision has been reserved until a future date. The outcome is being closely watched and comes at a crucial juncture.

It's been close to a year since the province implemented new carding regulations that were supposed to end arbitrary or race-based police stops.

With an independent review under way into whether the practice should be banned altogether in Ontario, the Hamilton hearing raised questions communities and police services across the country are struggling to answer: Are street checks a necessary investigative tool for police? Or are they an infringement on the human rights of racialized people, who continue to be disproportionately stopped and questioned?

On one side of the debate is Constable Pfeifer's lawyer, Bernard Cummins, who argued that this case is about "conduct, not colour." The encounter was nothing more than a well-being check, he says, a proactive and necessary part of policing that has been misconstrued by Mr. Green – a vocal anti-carding advocate – to further his political agenda.

"What we have here is a politician who created a narrative. That narrative is that he was carded and detained. He became an advocate of that narrative," Mr. Cummins said.

"What is an arbitrary street check?" he asked. "To understand and determine that this interaction was inappropriate, don't you have to know when checks are justified, and how this one fell outside the scope of a justified one?"

He suggested that it is impossible for someone to feel "psychologically detained" by a police officer who is in a cruiser 25 to 40 feet away – an argument contested by prosecutor Brian Duxbury, representing the Hamilton Police Service.

There was no other way to interpret Mr. Pfeifer's conduct that day, Mr. Duxbury said, except as this: "I'm in control. I have more questions. We're not done here yet. You are not free to go. Don't you dare move."

Wade Poziomka, counsel for Mr. Green, argued that this incident is reflective of the larger systemic issue of racial profiling in policing. In Hamilton, he noted, citing a report by law professor David Tanovich, 11 per cent to 14 per cent of police street checks were done on black people over the past five years. However, only 3 per cent of the city's population is black, according to the 2011 census.

"Racial profiling is recognized by our highest courts and even the police service itself, at least on paper. But to individual officers like Constable Pfeifer, it is completely lost on them," he said Thursday.

He urged hearing officer Terrence Kelly, in his deliberations, to assess not only whether this was an arbitrary stop, but whether it was racially motivated.

The blame does not fall solely on the shoulders of Constable Pfeifer, Mr. Poziomka said, arguing that the Hamilton Police Service is "a largely uneducated police force, at least as far as it relates to racial profiling."

During his testimony, Constable Pfeifer was not able to recall any specific training he'd received around discrimination or racial profiling. He denied that it is an issue in policing at all.

Constable Pfeifer's explanation for the stop that day, his lawyer summarized, was that Mr. Green appeared mentally unstable – which concerned the officer because of the location's proximity to a nearby group home – and that he was "hiding" near the bridge, standing in a puddle of mud.

Mr. Poziomka called this explanation "nonsensical."

There is a fine line when it comes to community-based policing and street checks, Mr. Duxbury argued – and the bar is high.

"The sensitivity in that fine line matters," Mr. Duxbury said. "A pedestrian faced with the authority of a police officer, can very quickly feel restrained, and ultimately detained, in their ability to move freely."

But the disputed definition of that line – the distinction between a "street check" and a well-being check – continues to be debated.

Under the new Ontario regulations (which came into effect early this year, eight months after this incident), police must explain to people they stop that they have a right not to talk with them, and that their refusal to talk cannot then be used against them to compel information.

Police are also now obligated to explain their reasons for stopping someone, and provide a receipt of the interaction, including the officer's name and badge number and information on how to contact the Office of the Independent Police Review Director (OIPRD).

But anti-carding advocates have argued that a number of loopholes remain in the regulations.

A review is now being done by Ontario Court of Appeal Justice Michael Tulloch, who will produce a report by January, 2019, into the challenges and validity of carding as a policing tool – determining whether street checks play a crucial role in modern policing, as so many officers insist they do.

Anthony Morgan, a human-rights lawyer and a prominent advocate for Toronto's black community, said Wednesday that in the meantime, the PSA case ruling out of Hamilton will be watched "keenly" by advocates and police alike.

"That decision will be very important and precedent setting for this particular issue," he said. The public's interest is clear, evident by the crowd that filled a downtown conference room for the final submissions Thursday.

"Your decision, sir, will have ramifications beyond Constable Pfeifer," Mr. Poziomka told the hearing officer Thursday, noting that racial profiling is a "terrible reality that is all too often unrecognized."

"Allegations of racial profiling must be taken seriously and flushed out. You have the opportunity to do that here in this case."